State v. Huff

• Decision Date: 12 November 1901
• Citation: 65 S.W. 256,164 Mo. 480
• Parties: THE STATE v. HUFF, Appellant
• Court: Missouri Supreme Court

65 S.W. 256

164 Mo. 480

THE STATE v. HUFF, Appellant

Supreme Court of Missouri, Second Division

November 12, 1901

Appeal from Monroe Circuit Court. -- Hon. D. H. Eby, Judge.

Affirmed.

Bodine & Boyd for appellant.

(1) The instruction in the nature of a demurrer, offered by defendant at close of plaintiff's case, should have been given there being no evidence of force used or attempted to be used by defendant. In order to convict for an assault with intent to rape, the evidence must show beyond a reasonable doubt that defendant intended to accomplish his purpose regardless of any resistance the woman might offer. State v Hayden, 141 Mo. 311; State v. Scholl, 130 Mo. 396; State v. Owsley, 102 Mo. 678; State v. Priestley, 74 Mo. 24; State v. Perkins, 11 Mo.App. 82. (2) There being no evidence of force used on the part of defendant, the plaintiff is driven to the position that the prosecutrix was a woman of such weak and disordered mind that she could not understand the nature and consequence of such act. The evidence does not uphold this contention. Her father testifies positively that she did know "such things" were wrong, also her mother testifies that she knew such acts to be wrong, because she had instructed her in regard to them, and Nettie Carter herself testifies she knew such acts to be wrong. The evidence further shows that this defendant never, until on the day of the alleged crime, saw Nettie Carter, and did not know the condition of her mind. If the man does not know the woman is insane, and from her conduct is led to believe he has her consent, the act is not rape. State v. Cunningham, 100 Mo. 382. Again, the defendant contends that since the plaintiff offered Nettie Carter as a witness, and the court, in the absence of the jury, examined her as to her competency as a witness, and declared her competent, thus virtually finding that she was capable of giving her consent, and after this the plaintiff offered her as a witness, by so doing they vouched for her competency and sanity, and can not afterwards be heard to say she is incapable of giving her consent. State v. Thompson, 26 S.W. 987.

Edward C. Crow, Attorney-General, for the State.

(1) Instructions numbered one and two, asked by the defendant, were properly refused. These two instructions should only be given upon the theory there is no evidence to warrant a conviction and submit the case to the jury. The rule is that where a verdict has been rendered and motion for a new trial has been made or to have it set aside because of lack of substantial evidence to support it, and the motion has been overruled by the trial court, it must be a clear case of failure of proof before this court will interfere. State v. Hayden, 141 Mo. 311. Where there is evidence to support the verdict, it is the duty of the court to submit the question of fact to the jury, and it will not be disturbed unless there is evidence of passion, prejudice and partiality on the part of the jury in finding a verdict. State v. Cook, 58 Mo. 58; State v. Hildebrand, 116 Mo. 543; State v. Thomas, 78 Mo. 327; State v. Jackson, 95 Mo. 623. (2) The record in this case fully justifies the verdict of the jury upon the theory that the defendant attempted forcibly to ravish the girl against her consent. The testimony of the defendant himself admits all of the facts in the case except the proposition that he attempted to forcibly have intercourse with her against her consent and at all hazards. There was evidence of the outcry and resistance of the prosecuting witness. The testimony clearly shows that the girl made all the resistance of which she was capable. It is true that some of the courts have said that resistance must be up to the point to be overpowered by actual force and inability from loss of strength to longer resist, and other courts have said that a woman's will must be opposed to the act and there must be no inclination favoring it, or that will be considered in favor of the defendant. This latter is not, under ordinary facts, repugnant to good doctrine, but a better judicial doctrine appears to be, the case is proven if the woman only did not consent. Any other doctrine is asking too much of virtue and giving too much to vice. Bishop on Criminal Law (8 Ed.), sec. 1122, par. 5. The measure of resistance must be determined by the condition of the woman and the facts surrounding the case. The facts in this case are amply sufficient under the decisions in this State to authorize a conviction for assault with intent to commit rape. State v. Cunningham, 100 Mo. 382. (3) To constitute a rape the act must be intended to be done with force and without the woman's consent, and if done with these intentional elements, it can make no difference that the woman was insane, and that the accused did not know she was incapable of giving her consent. State v. Cunningham, 100 Mo. 394. The question as to whether or not the defendant knew that the prosecuting witness in this case was mentally incapable of consenting, was submitted to the jury by proper instructions on the theory of the defense that the prosecuting witness assented to whatever was done. When that instruction was given it met the proposition of law that if the man does not know that the woman is non compos and from her conduct is led to believe he has her consent, then no rape or an assault to commit rape can exist. The law is that if the defendant intended at the time of making the assault, with force, if necessary, to the extent of having carnal knowledge of the woman to carry out the intent, notwithstanding any resistance on her part, then even if he is frightened away or was successfully resisted, or subsequently abandoned his purpose without accomplishing it, this would be no defense. If the defendant made the assault with the intention and the means adapted to the end with the apparent ability to complete the attempt in the usual course of natural events, if not hindered by causes outside of his own will, the case may be said to be fairly made out. 63 Mo. 296; 78 Mo. 307.

BURGESS, J. Sherwood, P. J., and Gantt, J., concur.

OPINION

BURGESS, J.

Defendant was convicted in the circuit court of Monroe county for assault with intent to ravish one Nettie Carter, and his punishment fixed at three years' imprisonment in the penitentiary. After unavailing motions for a new trial and in arrest defendant ...